Summary of a Recent
Judicial
Development in
Environmental Law
FOIA and FIFRA Prevent Public Disclosure of
Livestock Protection Program Participants
Eric H. FoyNational AgLaw Center Research Associate
Summary of Decision
In Doe v. Veneman, 230 F. Supp. 2d 739 (W.D. Tex. 2002), the United States District Court for the Western District of Texas granted the plaintiffs' motion for summary judgment. The could held that livestock information collected pursuant to cooperative agreements entered into with the plaintiffs implicated their privacy rights, was protected by the Federal Insecticide Fungicide and Rodenticide Act (FIFRA), and was protected by the Privacy Act from disclosure to the general public.
Background
The plaintiffs, ranchers and farmers, entered into cooperative agreements with the United States Department of Agriculture (USDA) seeking assistance in protecting their livestock from predators. Id. at 741. The agreements required the plaintiffs to disclose their names, addresses, telephone numbers, ranch or farm name, property owner name, property owner address, land class and size, the species of wildlife to be managed, the methods that would be used, and an identification of the type of pesticide to be applied on the property. Id. at 743. One such method used to protect livestock employed the use of livestock protection collars (LPC) to protect sheep and goats from predators. Id. The solution contained inside collars was Compound 1080, a FIFRA limited use pesticide. Id. Another protection method used an M-44 ejector mechanism containing sodium cyanide, another FIFRA limited use pesticide. Id. at 743-44. The intervenor, Animal Protection Institute (API), filed a Freedom of Information Act (FOIA) suit to obtain a list of participants in the LPC program. Id. at 742. After learning of the USDA's intent to disclose the list to the API, the plaintiffs filed suit and sought a temporary restraining order (TRO). Id. The court granted the plaintiffs' request for a TRO, and then granted the plaintiffs' request to certify the suit as a class action. Id.
Arguments
The plaintiffs' complaint contended that releasing the information to the public "would be an arbitrary and capricious exercise of Government authority and an unlawful abuse of agency discretion" for the following reasons: (1) "because the information [was] exempt from disclosure under Exemption 6 of FOIA"; (2) "because the information [was] exempt from disclosure under exemption 4 of FOIA"; (3) "because the information [was] exempt from disclosure under exemption 3 of FOIA"; and (4) "because disclosure of such information [was] prohibited by the Privacy Act." Id.
The government moved to dismiss the plaintiffs' claims, arguing that the court lacked jurisdiction because the claims were not ripe, the agency action was not final, and the claims did not constitute a constitutional violation. Id. at 746.
Analysis and Holdings
The purpose of FOIA is to "'ensure that the Government's activities [are] opened to the sharp eye of public scrutiny, not that information about private citizens that happens to be in the warehouse of the Government be so disclosed." Id. at 748. To determine whether granting a FOIA exemption is appropriate, courts balance public interest against whatever Congress intended the exemption to protect. Id.
The court first addressed the plaintiffs' contention that the information at issue was exempt from disclosure under Exemption 6 of FOIA. Id. Exemption 6, 5 U.S.C. § 552(b)(6), exempts personnel and medical files from disclosure if disclosure would constitute a "clearly unwarranted invasion of personal privacy." Id. at 748. The government argued that the plaintiffs' businesses were not exempt under Exemption 6 because they were businesses and not individuals, and thus they did not qualify for the non-disclosure exemption. Id. at 750. The court stated that the "government's definition of 'business' for [FOIA exemption] purposes [was] something . . . created out of thin air and [had] no factual or rational basis." Id. For this reason, the court held that the "USDA's decision that the Cooperators were not entitled to individual privacy rights under Exemption 6 was arbitrary, capricious, an abuse of discretion, and not in accordance with law." Id. Additionally, the court held that the requested information failed to "shed any greater light on the operations of the USDA," which is the purpose of FOIA. Id.
Next, the court examined Exemption 3, 5 U.S.C. § 552(b)(3), which
exempts from disclosure information specifically protected by another federal statute, provided that the statute (1) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or (2) establishes particular criteria for withholding or refers to particular types of matters to be withheld.
Id. at 751.
The plaintiffs pointed to FIFRA, 7 U.S.C. § 136i-1(b), as the instant protecting federal statute. Id. The plaintiffs argued that FIFRA required "certified applicators of restricted use pesticides to maintain certain application records." Id. FIFRA makes the records available to other agencies playing a role in pesticide regulation, but the records are not to be disclosed in a manner that would "reveal the identity of individual producers." Id. Because the pesticides in LPCs and M-44s were classified as registered use pesticides, and the application of the pesticides triggered record keeping requirements, the court held that release of the information sought by the API would run contrary to Exemption 3. Id. at 751-52.
Finally, the court addressed the plaintiffs' contention that the information sought by the API was protected by the Privacy Act, 5 U.S.C. § 552a(b)(2). Id. at 752. The Privacy Act forbids disclosure of personal information unless FOIA requires release or the private party consents to release. Id. at 752. As discussed above, FOIA did not require release and the plaintiffs did not consent to release; therefore, the Privacy Act prevented release of the information sought by the API. Id.
The case was decided on September 30, 2002.